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Judgment
V. Gopalaswamy, J.—This revision is preferred against the judgment of the First Additional Sessions Judge, Ganjam, Berhampur dated 25.2.1984, in Criminal Appeal No. 34/83 (147/82-GDC), confirming the order of conviction passed by the Chief Judicial Magistrate, Ganjam, Berhampur, in 2(c) C.C. No. 295/79, u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as ''the Act'') and sentencing the Petitioner thereunder to pay a fine of Rs. 3000/-.
The gist of the prosecution case is that on 1.9.1979 at about 6 P.M. the Food Inspector, Berhampur Municipality visited the business premises of the Petitioner and duly took samples of til oil, niger oil and groundnut oil exposed for sale and sent them to the Public Analyst for examination, when the Analyst reported that all the samples were adulterated, and so after getting the necessary sanction, the Petitioner was prosecuted u/s 16(1)(a)(i) of the Act.
After proper appreciation of the evidence on record both the Courts have come to the finding that the Petitioner and guilty u/s 16(1)(a)(i) of the Act. The learned Counsel for the Petitioner challenges the validity of the order of conviction and sentence passed against the Petitioner u/s 16(1)(a)(i) of the Act on certailletal grounds which are considered in the succeeding paragraphs.
The first point urged by the learned Counsel for the Petitioner is that as a copy of the report of the Public Analyst was not sent to the Petitioner after the institution of prosecution against the firm, the same is in violation of Section 13(2) of the Act and Rule 9-A of the Prevention of Food Adulteration Rules (hereinafter referred to as ''the Rules''), Exts. 19 and 20 are the two intimations sent by the local health authority to the Petitioner on 18.12.1979 by registered post with acknowledgement due enclosing copies of the report of the Public Analyst. Admittedly the Petitioner had received the reports of the Public Analyst and so such receipt of the reports by the Petitioner was subsequent to 18.12.1979. Cognisance was taken against the Petitioner u/s 16(1)(a)(i) of the Act on 22.12.1979. The learned Counsel for the Petitioner contended that as the reports of the Analyst were not sent again to the Petitioner subsequent to the date of institution of the prosecution on 22.12.79, on that score alone, the trial is vitiated.
In Dalchand Vs. Municipal Corporation, Bhopal and Another, , the Supreme Court held that Rule 9(j) of the Rules, as it obtained prior to the insertion of Rule 9-A and which is almost in pari material with Rule 9-A is not mandatory but only directory.
In Cuttack Municipality Vs. Prakash Kumar Barik, , where the grievance made by the accused was that the analyst''s report was not sent to him after the institution of the prosecution, but it was not his case that he did not receive it, this Court after considering some of the decisions of different High Courts observed thus:
...Further, there is a catena of decisions of various High Courts, namely, Tulsiram v. The State of Madhya Pradesh 1983 F.A.J. 338 and The State of Himachal Pradesh v. Inder Jeet 1983 F.A.J. 311. where while considering the impact and content of Rule 9-A and Section 13(2) it has been held that such provisions are not mandatory. The only question is, whether the accused has been any way prejudiced for the non-compliance....
In the above case as the receipt of the analyst''s report prior to the institution of the prosecution has not resulted in any prejudice to the accused, it was held that he cannot be heard to make a grievance on that score.
In Tulsiram Vs. State of Madhya Pradesh, , The Supreme Court explained the scope and ambit of Rules 13(2) and 9-A in the following terms:
...The real question is, was the Public Analyst''s Report sent to the accused sufficiently early to enable to him to properly defend himself by giving him an opportunity at the outset to apply to the Court to send one of the samples to the Central Food Laboratory for analysis? If after receiving the Public Analyst''s Report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. But conclusions, on this question are: The expression immediately in Rule 9-A is intended to convey sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the Statutory right u/s 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with Rule 9-A is not fatal. It is a question of prejudice....
In view of the Tulsiram''s case of the Supreme Court (supra), what is mandatory is that the Public Analyst''s report must be sent to the accused at the earliest opportunity so es to facilitate the exercise of the statutory right u/s 13(2) in good and sufficient time before the prosecution commences leading evidence. In the present case the Public Analyst''s reports were admittedly sent to the Petitioner by registered post on 18.12.1979 and the same were received by the Petitioner subsequent to 18.12.1979. The prosecution was instituted against the Petitioner on 22.12.1979. On aperusal of Exts. 19 and 20, it is clear that the Petitioner was directed to make an application, if he so likes, before the Sub-Divisional Judicial Magistrate, Berhampur within a period of 10 days from the date of receipt of the Analyst''s report. From Exts. 19 and 20 it must have been evident to the Petitioner that the Local Health Authority ''had taken the preliminary steps for prosecuting him. P.W. 1 was examined in this case on 21.8.1980. So the Petitioner had sufficient time and opportunity for exercising his statutory right u/s 13(2) of the Act. So in the present case it can be safely held that the Petitioner was in no way prejudiced in the conduct of his defence, when he received the Analyst''s report about three days prior to the date of taking of cognisance. So the argument of the learned Counsel for the Petitioner that the trial is vitiated because the analyst''s report was not again sent to the Petitioner subsequent to the date of taking of cognisance is without any substance.
From the report of the Public Analyst regarding the sample of niger oil marked Ext. 14 it is seen that the sample was found to be adulterated and prohibited for sale. Ext. 15 is the Public Analyst''s report regarding the sample of til oil wherein it is stated that the sample was slightly adulterated as the free fatty acid content of 3.7 per cent was lightly higher than the prescribed standard. According to the Public Analyst''s report Ext. 16, the ground-nut oil sample was found to be adulterated as its free fatty acid content was found to be 7.06 per cent which is higher than the limit prescribed for ground-nut oil. In the above mimed three edible oils the permissible limits of free fatty acid content are up to 3 per cent. The learned Counsel for the Petitioner contended that the til oil was found to be so slightly adulterated that even if the Petitioner was found to have committed an offence in the technical sense, he should have been absolved of the offence by applying Section 95, I.P.C. In support of his contention, he relied on B.K. Varma v. Corporation of Madras AIR 1971 Mad 40. The maxim de minimis non curat lex, which means that the law does not take account of trifles, is the foundation of Section 95, I.P.C. The learned Counsel for the opposite parties relied on the decision State of Kerala v. Vasudevan Nair, a Full Bench decision of the Kerala High Court, reported in 1975 F.A.J. 36: The following observations of the Kerala High Court are considered relevant'' and material and hence quoted below:
The Act does not make a distinction between cases coming under it on the basis of the degree of adulteration. It does not provide for aggravation of offence based on the extent of adulteration. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to be the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interest are involved in them, the maxim De Minimis Non Curat lex. Law does not concern itself about trifles does not apply to them.
x x x x
The Act does not provide for exemption of marginal or border line variations of the standard from the operation of the Act. In such circumstances to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act.
In an analysis of the relevant provisions in the Act, in Jagdish Prasad alias Jagdish Prasad Gupta Vs. State of West Bengal, , the Supreme Court held that as the standards have been fixed with great care as per the statutory provisions, any person who dealt in articles of food not conforming to the standards was liable to be punished. So the standards of quality and limits of variability fixed by Government in the Appendix-B are not subject to alteration or variation by the decisions of courts.
In view of the above referred decisions of the Supreme Court and the Kerala High Court it follows that an item of food is either adulterated or not. Adulteration of food even if it be a slightest extent, is not a trifling matter to the consumer as his Health is likely to be injuriously affected in the long run by his continued consumption of such food. Hence I respectfully differ from the view of the Madras High Court in Varma''s case (supra) and hold that the provisions of Section 95, I.P.C. are not applicable to the offences committed under the provisions of the Prevention of Food Adulteration Act.
The Petitioner was prosecuted u/s 16(1)(a)(i) of the Act for having exposed for sale adulterated til oil, niger oil and ground-nut oil, Ext. 18 is the sanction order. The learned Counsel for the Petitioner urged that as no reference was made to the adulterated ground-nut oil in the sanction order, no charge should have been framed against the Petitioner in relation to the adulterated groundnut oil. That after obtaining a valid written consent of the sanctioning authority the prosecution was instituted against the Petitioner is not indispute. The court has taken cognisance of the offence u/s 16(1)(a)(i) of the Act and sanction was accorded for prosecuting the Petitioner under that section. So it is a moot point whether the fact that no reference was made in Ext. 18 to the adulteration of the ground-nut oil as well would, by itself, preclude the trial court from framing a charge against the Petitioner in respect of the adulteration of the ground-nut oil However, in the facts of the present case, it is not necessary to go into that question as even if the adulteration of the ground-not oil is ignored, the prosecution has satisfactorily proved that the Petitioner had exposed for sale adulterated niger oil and til oil and that is sufficient to being home to the Petitioner the charge u/s 16(1)(b)(i) of the Act.
The learned Counsel for the Petitioner next contended that as the Petitioner was tried for an offence under Sub-section (1) of Section 16, in view of the provisions of Section 16-A of the Act, he should have been tried in a summary way and as the Petitioner was tried by adopting warrant procedure, the trial is vitiated. From the second proviso to Section 16-A it is clear that the Magistrate has a discretion not to try the Petitioner summarily if the nature of the case justifies such a course.
In Gopal Das v. State of Assam AIR 1961 SC 986, the Supreme Court observed thus:
Regarding the second contention, it is true that after the amendment of the Code of Criminal Procedure an offence u/s 448 is triable as a summons case and Mr. Goswami adopted the procedure prescribed for a case triable as a warrant case. We are, however, of the opinion that this irregularity does not vitiate the proceedings and is curable by the provisions of Section 537, as no prejudice to the accused has been established in the case.
In Munshi Lal Vs. Emperor, a trial which should have been held by the Magistrate as a summary trial was held in the manner of a regular trial. Under the Holding and Profiteering Prevention Ordinance the trial of the accused who was arraigned for breach of that Ordinance, had to take place in the manner of a summary trial unless otherwise authorised by the District Magistrate, but the accused did not raise any objection at the trial as to the form in which the evidence was recorded and it was held that the irregularity was cured by Section 537 of the old Code of Criminal Procedure (which corresponds to Section 465 of the new Code), In a summary trial the Magistrate shall record only the substance of the evidence, whereas in a regular trial, he has to maintain a complete record of the evidence led before him. Thus the procedure prescribed for a warrant case is more beneficial to the accused then the summary procedure. The aim and object of Section 15-A of the Act introduced by Act 34 of 1976, is to deal with food adulteration cases expeditiously and without delay.
The learned Counsel for the Petitioner cited the decision Oswal Oils and Vanaspati Industries, (Prop: Oswal Woollen Mills Ltd.) and Another Vs. The Food Inspector, Berhampur Municipality, . There is nothing in the decision which lands support to the prosecution canvassed by the learned Counsel for the Petitioner that u/s 16-A trial of offences u/s 16(1) of the Act by adopting warrant procedure, is prohibited. In the present case, as no prejudice was caused to the Petitioner in the conduct of his defence by adopting the warrant procedure, the contention of the learned Counsel for the Petitioner that the trial is vitiated because the warrnate procedure was adopted, merits no consideration.
Another point urged by the learned Counsel for the Petitioner is that as the Petitioner''s manager was not examined u/s 313, Code of Criminal Procedure and in his place as his Advocate was examined, the trial is vitiated on that score as welt. The learned Counsel for me opposite parties submitted that the Advocate, who has got himself examined u/s 313, Code of Criminal Procedure, was one of the senior most Advocates of Ganjam Bar and this is not disputed by the learned Counsel for the Petitioner. In Bibhuti Bhusan Das Gupta and Another Vs. State of West Bengal, , the Supreme Court observed as follows:
...Under Section 537 the conviction and sentence are not reversible on account of any error, omission or irregularity in any proceedings during the trial unless the error, omission or irregularity has in fact occasioned a failure of justice. Mere non-examination or defective examination u/s 342 is not a ground for interference unless prejudice is established.
In this case it is difficult to believe that the Advocate would have voluntarily examined himself u/s 313, Code of Criminal Procedure, without the consent of the Petitioner. When a seasoned lawyer, who is well versed in the twists and turns of law and having a grip over the facts of the case, gets himself examined u/s 313, Code of Criminal Procedure instead of the Petitioner, it is all to the Petitioner''s advantage and more so as he was a newly appointed Manager, who must not have been fully acquainted with the facts of the case. Hence it is seen that the Petitioner was in no way prejudiced when the Petitioner''s Advocate got himself examined u/s 313, Code of Criminal Procedure, instead of the Petitioner.
The learned Counsel for the Petitioner did not urge any other substantial point of law, which deserved consideration.
In the result, I find no merit in the revisions petition and the same is accordingly dismissed.